Khalif Jele Mohamed & 1 other v The Republic & 1 other
The bottom line
#Kenya's Court of Appeal ruled that a shop lease letting either side end the lease anytime on notice is 'controlled', so the Rent Tribunal handles it.
What this practically means
#Executive summary
#Key legal issues
#Interpretation of Section 2(1)(b)(ii) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act - what makes a written tenancy a controlled tenancy
A tenancy with a blanket termination clause allowing either party to terminate at any time during a six-year term is a controlled tenancy, because the clause does not exclude termination within the first five years; the High Court erred in requiring an express limitation to five years.
Section 2(1)(b)(ii) captures tenancies containing provision for termination, otherwise than for breach of covenant, within five years from commencement. The Court read the provision purposively: the question is whether termination within the first five years was possible under the clause, not whether the clause expressly confined notices to that period. Because the clause gave liberty to terminate at any time for any reason, it was permissive of termination within five years, bringing the tenancy within the definition and clothing the Tribunal with jurisdiction.
Whether the fact that no termination notice was given within the first five years, and that the landlord's notice came after five years had lapsed, affects the characterisation
Neither the lapse of five years before the landlord's notice nor the absence of an actual notice within the first five years is material; the characterisation depends on the wording of the clause, not on how the parties exercised it.
The Court held that it does not matter that no notice was in fact given within the first five years, nor that the landlord's notice of 29th October 2015 came when five years had lapsed; moreover, those notices merely indicated non-renewal on expiry of the six-year term rather than termination of the tenancies. The decisive factor is the capacity conferred by the clause, not its subsequent exercise.
Legal principles established
#- Where a tenancy agreement contains a termination or break clause permitting termination at any time during the term, such that termination is possible within the first five years, the tenancy is a controlled tenancy under Section 2(1)(b)(ii) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act even if the clause is not expressly limited to the first five years.
- A court may not read into a termination clause a restriction that the parties did not include; an open-ended break clause is permissive of termination within five years and thereby renders the tenancy controlled.
Court orders
#- 1.Appeal allowed
- 2.Judgment of the High Court given on 23rd February 2017 in Judicial Review Case No. 23 of 2016 set aside
- 3.An order substituted dismissing the 1st respondent's application dated 9th May 2016
- 4.Each party to bear its own costs of the appeal and of the proceedings in the High Court
- On appeal from
- High Court of Kenya at Mombasa
- Judicial Review Application No. 23 of 2016
- Jurisdiction invoked
- First appeal/judicial review appeal under the Court of Appeal's appellate jurisdiction; the judgment does not cite a specific constitutional provision for its own jurisdiction.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Khalif Jele Mohamed & 1 other v The Republic & 1 other", Case Analysis (2019). Civil Appeal No. 152 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/473/eng@2019-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.